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A little more than a year
ago this blog reported that a new reference for a
preliminary ruling to the Court of Justice of the European Union (CJEU) had
been filed by the Rechtbank Midden-Nederland
(District Court, Central Netherlands, Netherlands).

Background

This
reference [Stichting Brein v Jack Frederik Wullems, acting under the
name of Filmspeler, C-527/15] had arisen in the context of litigation between Dutch anti-piracy
organisation Stichting Brein and Jack
Frederik Wullems over the sale, by the latter and through - among other things
- his site www.filmspeler.nl, of various models of a multimedia player
under the name ‘filmspeler’.

Filmspeler
is a player for connecting a source of image and/or sound signals to a
television screen. If the multimedia player is connected to the internet, on
the one hand, and to a user’s screen (for example, a television screen), on the
other, the user is able to stream the image and the sound from a web portal or
website.

Among
other things, Wullems installed add-ons [over which he had no influence] containing hyperlinks which, if clicked,
would redirect the user to streaming websites, controlled by third parties, on
which films, television series and (live) sporting events could be enjoyed free
of charge, with or without the authorisation of relevant rightholders.

Stichting
Brein sued Wullems for copyright infringement before the District Court of
Central Netherlands, claiming that through
the sale of the Filmspeler player, Wullems was carrying out a
‘communication to the public’ contrary to Dutch copyright law.

The District Court held the
view that the relevant Dutch provisions should be interpreted in light of
Article 3 of the InfoSoc Directive but considered that:

(1)
CJEU case law existing at that time [notably Svensson and BestWater] would not provide criteria
sufficient for reaching a decision in this case; and

(2) it was unclear whether the defence for temporary copies, pursuant to the Dutch transposition of
Article 5(1) of the InfoSoc Directive, would be applicable to relevant streaming activities.

The
District Court decided therefore to stay the proceedings and seek guidance from
the CJEU as to the following:

‘1) Must
Article 3(1) of the [InfoSoc] Directive be interpreted as meaning that
there is “a communication to the public” within the meaning of that provision,
when someone sells a product (mediaplayer) in which he has installed add-ons
containing hyperlinks to websites on which copyright-protected works, such as
films, series and live broadcasts are made directly accessible, without the authorisation
of the right holders?

2) Does it
make any difference:

- whether the
copyright-protected works as a whole have not previously been published on the
internet or have been published only through subscriptions with the
authorisation of the right holder?

- whether the
add-ons containing hyperlinks to websites on which copyright-protected works
are made directly accessible without the authorisation of the right holders are
freely available and can also be installed in the mediaplayer by the users
themselves?

- whether the
websites and thus the copyright-protected works made accessible thereon —
without the authorisation of the right holders — can also be accessed by
the public without the mediaplayer?

3) Should
Article 5 of the [InfoSoc] Directive (Directive 2001/29/EC) be interpreted
as meaning that there is no “lawful use” within the meaning of
Article 5(1)(b) of that Directive if a temporary reproduction is made by
an end user during the streaming of a copyright-protected work from a
third-party website where that copyright-protected work is offered without the
authorisation of the right holder(s)?

4) If the answer to the third
question is in the negative, is the making of a temporary reproduction by an
end user during the streaming of a copyright-protected work from a website
where that copyright-protected work is offered without the authorisation of the
right holder(s) then contrary to the “three-step test” referred to in
Article 5(5) of the [InfoSoc] Directive (Directive 2001/29/EC)?’

Today's AG
Opinion

This
morning Advocate General (AG) Manuel Campos Sánchez-Bordona delivered his Opinion, and held the view that:

(1) the sale of a multimedia player of the kind at issue
in the main proceedings constitutes “communication to the public” within
the meaning of Article 3(1) of the InfoSoc Directive [note (para 33) that the submission of the
Commission is that in the case at hand Article 3(1) would not be triggered
because what Wullems did was to provide a mere ‘physical facility’ that
would enable, but would not in itself be, a communication], and

(2) cannot be covered by the exception laid down in
Article 5(1) therein, inasmuch as it does not fall within the definition
of “lawful use” in subparagraph b) of that provision and, in any case, does not
fulfil the conditions for application of the three-step test in
Article 5(5).

Communication
to the public

The AG noted at the outset [para 3] how
the first and second questions referred by the
Dutch court are, in some respects, the same as those which gave rise to the
judgment in GS Media[Katposts here]. However,
according to the referring court, in this case the factual difference is that -
unlike the background proceedings in GS Media - no
hyperlinks were posted on the defendant's own website, but rather add-ons with
hyperlinks were installed in the mediaplayer offered by him.

Despite this, according to the AG the CJEU
judgment in GS Media is applicable to the case at hand [para 4].

Interestingly enough, at para 41 the AG also
warned against the risks of departing from previous CJEU decisions [is this why not even AG Wathelet in his GS MediaOpinion - here - dared to say that adopting his
view would mean departing from the CJEU conclusions in Svensson?]:

"The requirement of
certainty in the application of the law obliges the court, if not to apply
the stare decisis in absolute terms [formally
there is no system of binding precedent at the CJEU level], then to
take care to follow the decisions it has itself, after mature reflection,
previously adopted in relation to a given legal problem. To my mind, that is
what must happen with regard to the case-law laid down (or confirmed) in the
judgment in GS Media regarding the relationship between
hyperlinks and communication to the public in the context of Directive
2001/29."

Having said so, the AG recalled the cornerstones
of GS Media, ie that [paras
42-43]:

"(a) the
provision of clickable links to protected works must be considered to be
‘making available’ and, therefore, such conduct is an ‘act of
communication’; (b) that concept refers to any transmission of the
protected works, irrespective of the technical means or process used, and
(c) there is a rebuttable presumption that the posting of a hyperlink to a work
unlawfully published (without the authorisation of the right holders) on the
internet amounts to a ‘communication to the public’ within the meaning of
Article 3(1) of Directive 2001/79, if it is done in pursuit of profit.

In the
same vein, the Court has held that the concept of communication to the public
of a protected work requires either the communication to be made by a specific
method different from those used before or, failing this, the work to be
distributed to a ‘new public’, deemed to be a public which the right holders
did not take into account when they authorised the original (limited)
distribution of the work."

According to the AG [para 44] "it is not difficult to conclude that the case-law laid
down in the judgment in GS Media, regarding the relationship
between hyperlinks and the concept of communication to the public, is
applicable" to the case at hand.

This said, he considered the material difference
that, unlike in GS Media, Wullems did not directly provide any
hyperlinks to protected works, but rather offered for sale a multimedia
player with add-ons containing such hyperlinks.

Rejecting the Commission's
"reductionist" [in the AG's
view: see para 49] submission that Wullems’
intervention was ‘not crucial’ and that he merely ‘enabled’ the public to have
access to content that can be downloaded from other websites, the AG held [paras 49-51] that:

"Marketing of
the filmspeler goes beyond the mere sale of a technical
accessory ... In that device,
Mr Wullems provides, inseparably, the necessary hardware and software
which are aimed directly at enabling purchasers to access
copyright-protected works on the internet without the consent of right holders.
Provision of that immediate access to an unspecified public is part of the
added value of the service supplied by Mr Wullems, for which he receives
the price paid — or at least a substantial part thereof — in return
for the mediaplayer ... [T]here is no significant difference between posting
hyperlinks to protected works on a website and, as in the present case,
installing hyperlinks in a multimedia device designed specifically for use with
the internet (in particular, so that, through it, users are able to access
straightforwardly, directly and immediately, digital content made available
without the consent of the authors). The provision of links to that protected
content, the making available of that content to the public, is a feature
common to both types of conduct, and its apparently incidental or ancillary
nature cannot conceal the fact that the activities concerned are aimed at
ensuring that anyone may, merely by clicking on the hyperlink, enjoy the
protected works."

AG Campos Sánchez-Bordona

And here's the crucial bit [paras 53-54]:

"It is
therefore possible to refer to the indispensable role, within the meaning of
the case-law, played by Mr Wullems in the communication to the public
of protected works; his intervention is performed deliberately and with full
knowledge of the consequences entailed. That is clear, in particular, from the
examples of the advertising he uses to promote his device.

In short,
the filmspeler cannot be regarded as a mere ‘physical
facility’ within the meaning of recital 27 in the preamble to Directive
2001/29, but rather as a type of communication to the public of
copyright-protected works that have previously been unlawfully uploaded to the
internet. Mr Wullems’ conduct involving the installation of hyperlinks to
those works in his devices, which he clearly does in pursuit of a profit and in
awareness of its unlawfulness, assists purchasers of the filmspeler to
avoid the consideration payable for lawful access to those works, that is,
payment of the remuneration due to the right holders which usually takes the
form of a membership fee, subscription or another pay-per-view method."

Having said so, the AG turned to consideration of
whether the public targeted by Wullems's act of communication would be also
'new'. The AG answered in the affirmative, also noting [para 58] that "the filmspeler entails
an undeniable advantage for a significant portion of that public: persons not
particularly skilled at using the internet to find illegal sites for watching
films and televisions series, amongst other digital content. That portion of
the public might prefer the user-friendly menu which the filmspeler displays
on its screen to the sometimes laborious search for websites offering such
content."

Temporary copies defence?

Turning to the third and fourth questions the AG considered that,
in relation to Article 5(1) of the InfoSoc Directive, the condition that would
not be satisfied is the one relating to the ‘lawful
use’ of a protected work [para 65]. The AG added [para 71] that

"lawfulness,
in objective terms, depends rather on the authorisation of the right holder or
his licensee. Excusable ignorance or reasonable lack of knowledge, on the
part of the end user, of the fact that no such authorisation exists could,
undoubtedly, exempt the user from liability, but it does not exclude —
I repeat, in strictly objective terms — the unlawfulness of the ‘use’
referred to in Article 5(1) of Directive 2001/29."

Another indispensable intervention

It follows [para 72]that, since the protected works
to which the hyperlinks installed on Mr Wullems’ filmspeler lead
were not authorised by the copyright holders, streaming by an end user by means
of that device would not be consistent with ‘lawful use’ for the purposes of
Article 5(1)(b) of the InfoSoc Directive.

Three-step test

The AG also noted that, even admitting that use
of Wullems's device was covered by Article 5(1), none of the conditions in the
three-step test within Article 5(5) of the InfoSoc Directive would be
satisfied.

Also recalling the CJEU decision in ACI Adam[Katposts here], the AG
noted how "it would run counter to Directive 2001/29 to allow
indiscriminate or widespread reproductions from unlawful sources, or
reproductions made by circumventing the access limits. Accepting the validity
of such reproductions would be tantamount to promoting the circulation of
pirated digital content and, to that extent, would seriously prejudice the
protection of copyright and create favourable conditions for unlawful methods
of distribution, to the detriment of the proper functioning of the internal
market. [para 77]

Comment

Today's AG Opinion is good news for rightholders,
especially because the AG appeared to construe the notion of 'indispensable
intervention' fairly broadly and in a way that goes beyond a 'merely direct'
indispensable intervention [as instead,
in my view, the CJEU had done in Reha Training - here - and GS Media].We shall see if the CJEU follows the AG Opinion:
if this happens - and with the same nuances - then Filmspeler is going to be
an additional step towards an even broader interpretation of what the elusive
concept of 'communication to the public' entails.

Well people, be prepared for the film and music police swooping on your homes to see what your children are viewing and whether it was a legal stream or not. Where will this end? More sponsored i.e. fake litigation by US industry -making EU consumers guilty of things which would be fair use or secondary liability in the US.

So the AG does not like departing from previously decided cases ( re Article 3) but then he goes on to do precisely that for Article 5(1) notably for all those cases where there was no authorisation under Article 3 Premier League, Infopaq and Public Relations Ltd but the court upheld the application of Article 5(1). The Court has so far kept the respective provisions separate and that should be the correct approach.

It has long been the strategy of certain US corporate rightsholders and the likes of the UK sports industry to overturn the Premier League line of case law.

The AG walked straight into the trap but in so doing he risks giving rightholders greater control over what we watch in our homes.